Burchall v Shire of Sherbrooke [1968] HCA 69; (1968) 118 CLR 562 (31 October 1968)

HIGH COURT OF AUSTRALIA

BURCHALL v. SHIRE OF SHERBROOKE [1968] HCA 69; (1968) 118 CLR 562

Local Government (Vict.)

High Court of Australia
Barwick C.J.(1), McTiernan(2), Taylor(3), Menzies(4) and Owen(5) JJ.

CATCHWORDS

Local Government (Vict.) - Street-making - Scheme of street construction at expense of owners on street - Objection by owner to scheme on ground of "material informality defect or error in respect of the scheme or the preparation thereof" - Ground confined to failure to observe specific statutory requirement - Local Government Act 1958 (Vict.), s. 578 (2) (b).*

HEARING

Melbourne, 1968, April 30; May 1, 2;
Sydney, 1968, October 31. 31:10:1968
APPEAL from the Supreme Court of Victoria.

DECISION

October 31.
The following written judgments were delivered:-
BARWICK C.J. The appellants are the owners of an irregularly shaped piece of of Sherbrooke (the Shire) in the State of Victoria. The general area is hilly. Finmere Crescent is a private street within the meaning of Div. 10 of the Local Government Act 1958 (the Act). Its level had never been fixed nor has it been constructed within the meaning of that Division of the Act. It has a cross fall of one in four as has the land of the appellants. There is in Finmere Crescent a trafficable track some ten feet wide which is located towards the high side of the road reservation. The area was apparently the subject of an old subdivision effected some thirty years ago when local government controls, particularly as to road levels, were not as they are now. The road reservation is some fifty feet wide. At a point about the centre of the appellants' frontage, the centre line of the road reservation of Finmere Crescent is some seven feet higher than the appellants' frontage. The appellants have constructed a platform to form a level area on their land on which their home has been built. The level of this platform is some feet below the level of the frontage at the point nearest to it. To gain access by wheeled vehicle from their land to the track on Finmere Crescent, the appellants have used a driveway which emerges on to the road reservation towards the northern end of the appellants' frontage and which in effect intrudes upon that reservation for some nineteen feet before reaching the track at an acceptable gradient. Had the use of this portion of the reservation been denied them at any time for any reason, it is said in the evidence that the appellants would have had to face a considerably higher gradient to reach the trafficable track in Finmere Crescent. It is said that this gradient would have been of the order of one in seven. The male appellant is a plumbing contractor conducting his business on the subject land. Part of the use to which he puts it is to park motor vehicles used in connexion with his business as well as, during working hours, vehicles brought on to the land by his employees. (at p566)

2. In November 1965 the Shire ordered the preparation of a scheme under Div. 10 of the Act for the construction of three private streets in the area, namely, Finmere Crescent, Willow Road and Barrett Street. On 19th September 1966 it approved such a scheme. The proposal to construct the streets as appearing from the scheme affected the owners of ninety-eight lots. The lots were of various sizes with varying frontages. The formalities in connexion with the preparation and approval of the scheme as required by Div. 10 were complied with, including the service of notice upon the owners of the land affected whom the Council intended to make liable for contribution to the cost of executing the scheme. Section 576 of the Act gives to the Council the right to recover the cost or any part of the cost of constructing the private streets from the owners of the premises fronting such streets. It is clear from the evidence given in the subsequent proceedings in the court of petty sessions that the construction of streets in this hilly area is fraught with difficulty and that whatever scheme is adopted will cause some hardship to some of those owners. The scheme actually approved by the Council provided for a carriageway twenty-four feet in width in Finmere Crescent at a level where the appellants' land fronted it which was approximately seven feet above the level of that frontage and considerably below the level of the frontages on the opposite side of the street. To support the filling of the roadway necessary to obtain a level surface at this point, the scheme provided for a retaining wall some seven feet in height along the appellants' frontage. The appellants therefore, if the scheme were carried out, would no longer be able to gain access to Finmere Crescent by the use of their existing driveway and could only do so by bridging the difference of levels between their land and the roadway in some fashion which, however done, would involve them in a considerable expenditure of money. Also, it would seem that the gradient from the platform on which their home was built to the roadway would be of the order of one in seven or one in eight. Further, the amount which the Council assigned as being the appellants' contribution to the cost of the scheme was considerably larger than the average contribution of all the owners affected by the scheme. This was said to result from the irregular shape of the appellants' land and the resulting length of its frontage to Finmere Crescent. The Council, fairly as it claimed, did not apply to the full frontage of the appellants' land the cost per foot of frontage of the scheme overall. It took what it called a "modified frontage" or "an apportionable foot" according to a formula which sought to have regard to the "width" of the block as well as its actual frontage. In the result the cost per foot was applied to a notional frontage less in extent than the actual frontage. But even so there appeared to be a notable disproportion between the contribution claimed from the appellants as compared with the contribution claimed in respect of other lots affected by the scheme. According to the evidence called on behalf of the Council, the formula used by it was in common use by local government bodies faced with a similar problem posed by triangular or irregular blocks of land. (at p567)

3. The appellants objected to the scheme. For present purposes, the critical objection was:

"3. That there has been material defect or error in respect
of the scheme or the preparation thereof."

Particulars of this ground were said to be:

"(3) The scheme requires the construction of a retaining
wall on the eastern side of our land to a height which is
excessive.
(4) The scheme is defective in so far as it does not reserve
to us sufficient access to our land." (at p567)

4. The Shire did not accept these objections, and after consideration of them adopted the scheme on 19th October 1966 without modification or alteration. Notice of the adoption of the scheme was thereupon given as required by s. 579 of the Act. Thereafter, conformably with that section, the Shire referred the appellants' objection to the approved scheme in the same terms as the above to the court of petty sessions at Ferntree Gully for its consideration. (at p567)

5. That Court, constituted by a stipendiary magistrate, after an oral hearing exercising the power given to it by s. 579 (4) of the Act, quashed the scheme. The magistrate overruled an objection that the terms of the objection, which I have quoted, read with the Act and the decision of the Supreme Court of Victoria in Dodd v. City of Keilor (1965) 12 LGRA 341; (1966) VR 214 confined the appellants to the establishment of a failure on the part of the Shire to observe the provisions of s. 577 of the Act. The magistrate thereafter entertained a case sought to be made by the appellants that the scheme was invalid for two reasons, as I read the account with the papers of the evidence tendered before the magistrate, namely, firstly, that the basis of apportionment of the cost of the scheme amongst the frontagers which the Shire adopted was inappropriate and resulted in gross unfairness to the appellants and, secondly, that the construction of Finmere Crescent at the level chosen by the Shire along the appellants' frontage with the consequential erection of a retaining wall some seven feet high along that frontage was not the only way the construction of that road could be effected and that there was another practicable, though more costly, method of construction, namely, by a split level operation in Finmere Crescent which would avoid the interference with the appellants' access to the roadway along their frontage. (at p568)

6. At the conclusion of the evidence in support of this case, the magistrate concluded:

(1) that the scheme if carried through would result in
substantial
denial of access to Mr. and Mrs. Burchall;
(2) that such denial would be a great hardship to them;
(3) that the Shire had exceeded its power to construct the
private street by this denial of access;
(4) that the responsibility rested on the Shire to devise a
scheme of construction which does not involve such a
severe denial of access to the Burchalls;
(5) that although private street construction in the locality
is particularly difficult, it is not impracticable to give
the Burchalls a right of access;
(6) that he was not satisfied that there is no way out other
than the Shire's scheme;
(7) that the onus of establishing that the scheme was invalid
had been discharged by the Burchalls. (at p568)

7. Accordingly, he found the objection sustained and quashed the scheme. (at p568)

8. Upon the return of an order nisi to review this order of the court of petty sessions, Adam J. in the Supreme Court held that the terms of the appellants' objection were not wide enough to raise the case of invalidity in the scheme which had found favour with the magistrate and that, in any case, the evidence in the case could not be regarded as satisfying the limitation upon the Council's power to construct private roads which was formulated by Holroyd J. in M'Donald v. Shire of Coburg (1887) 13 VLR 268, at p 298 in relation to local government powers in respect of road construction which were not regarded as purely permissive powers. It was there said in substance that as well as negligence in the execution of the work, wantonness or oppression in the formulation or execution of the scheme would result in an abuse of authority. Holroyd J. said: "Wantonness and oppression I interpret as inflicting upon individuals some plainly unnecessary injury." Accordingly, Adam J. set aside the order of the magistrate and remitted the matter to him to further consider other objections by the appellant with which, because of his decision under review the magistrate had not felt it necessary to deal. Pursuant to the Court's leave, the appellants now appeal against the order of the Supreme Court. (at p569)

9. The first question which arises is as to the extent of the appellants' objection. Amongst the permissible objections which the owners of land affected by the scheme may make and which may be referred to a court of petty sessions for consideration is:

"578 (2) (b). That there has been some material informality
defect or error in respect of the scheme or the preparation
thereof, or that for any reason the scheme is invalid."

See also s. 579 (2), (3) and (4). (at p569)

10. The appellants' objection did not include the words "or that for any reason the scheme is invalid". It was argued that so much of the permissible objection expressed in s. 578 (2) (b) was set out in the appellants' objection that the whole of the statutory objection, including the omitted words, were carried into the formal objection. I am unable to accept this contention. It seems to me that par. (b) offers to the owners of the land several possible objections and that there is no basis for saying that the choice of any one of these necessarily indicates an objection upon all of them. Consequently, the matter, in my opinion, must be decided upon the footing that the appellants' objection was confined to the express terms of the document they had lodged with the Shire. (at p569)

11. In Dodd v. City of Keilor (1) the Full Court of the Supreme Court of Victoria decided that the objection

"set out in s. 578 (2) (b) obviously relates to a failure to
observe the provisions of s. 577 of the Act, for the power of the
council . . . is by s. 576 'subject to this Division'. . . . These
grounds" - which include that under par. (b) "do not
challenge the exercise by the council of an administrative
discretion - they challenge the scheme as not being in
conformity
with some specific statutory provision. In such cases
it is not inappropriate that the correctness of the council's
actions should be examinable by a duly constituted court"
(1965) 12 LGRA, at pp 346, 347;
(1966) VR, at pp 218, 219 (at p569)

12. Although so much of the Court's reasons for judgment in Dodd v. City of Keilor (1965) 12 LGRA 341; (1966) VR 214 as related to the meaning of s. 578 (2) (b) were unnecessary for the decision of the point then actually before the Supreme Court, Adam J., who was a member of the Full Court in the case felt that he should follow these reasons, particularly as, on further consideration, he fully agreed with them. In my opinion, the course taken by his Honour was correct. However, it is necessary that this Court consider the matter for itself, the propriety of the Full Court's reasons being challenged by the appellants. (at p570)

13. I should observe in the first place that the last phrase in the statutory objection provided by s. 578 (2) (b) is "that for any reason the scheme is invalid . . .": it is not "that for any other reason the scheme is invalid". Having followed through the pattern of the catena of sections from 575 to 580, as was done by the Full Court in Dodd v. City of Keilor (1965) 12 LGRA 341; (1966) VR 214 , I have reached the clear conclusion that "informality, defect or error" of which the statutory objection speaks is some informality, defect or error in relation to the express statutory requirements to attend on the conception or preparation of the scheme for the construction of the private streets. Although this may open up an extensive field of investigation, it does not, in my opinion, go so far as to permit the examination of either of the two matters which were presented by the appellants in this case in support of their objection. For one thing, the first matter raised by them, namely, the inappropriateness or unfairness of the basis of apportionment of cost, in my opinion, fairly fell within the ground of objection provided by s. 578 (2) (g), a ground which could not be referred to or considered by the court of petty sessions: see s. 579 (2) (b); cf. Dodd v. City of Keilor (1965) 12 LGRA, at p 348; (1966) VR, at p 220 . Further, the presence in s. 579 (2) (b) of a ground of objection to the adoption of the scheme in the same terms as the earlier part of the ground provided by s. 578 (2) (b), I think compels the view that the ambit of "informality, defect or error" in each paragraph is limited to failure to comply with express statutory requirements to be found in other parts of Div. 10 and, as I think, in other parts of the Act, or to errors connected with such compliance. (at p570)

14. The Supreme Court in its reasons in Dodd v. City of Keilor (1965) 12 LGRA 341; (1966) VR 214 similarly limited the objection "that for any reason the scheme is invalid". I think this raises a more difficult question. The absence of the word "other" in the ground might be thought to suggest an independence of the considerations to which it can give rise, of the considerations appropriate to the ground as expressed in the earlier part of the paragraph. Such a scheme, clearly could be "invalid" in the sense of being beyond the statutory power confided to the shire by the Act for reasons unconnected with the observance of statutory formalities or procedures. These reasons would include grounds upon which the Supreme Court could restrain the Shire from proceeding with a scheme which in its conception or execution exceeded the powers of the Council. Although, as I have said, the latter part of the paragraph is not of a piece with the earlier part, and though the word "other" is noticeably absent from the phrase, I find it difficult to believe that the legislature intended to commit to the local government body in the first place, and to a court of petty sessions in the second place, the consideration of such a question as to the exercise of statutory powers of the local government authority as a wide reading of the paragraph would entail. The very fact that the ground as to invalidity occurs in the same paragraph as the ground of material informality etc. would tend against such a conclusion. (at p571)

15. After due consideration, I am of opinion that the word "invalid" in the latter part of the paragraph is confined in its denotation to disconformity with the express provisions of the Act which require either the presence or absence of some material feature or provision of or connected with the scheme. I would not limit this consideration to the requirements of Div. 10 though I have not so far exhausted my study of the Act as a whole as to be able to point to any particular provision outside Div. 10 which might impose requirements upon the local government body in the conception, preparation, or implementation of the scheme. With this, perhaps small, reservation, I would agree with the reasons of the Full Court in Dodd v. City of Keilor (1965) 12 LGRA 341 ; (1966) VR 214 where it is said in substance that the whole of the grounds provided by the objection set out in s. 578 (2) (b) relate to a failure to observe the provisions of the Act. Consequently, in my opinion, even if the appellants' objection had expressed all that s. 578 (2) (b) provided, the case they sought to make before the magistrate was not open to them. That case would need to be pursued in proceedings to restrain the Shire from executing the scheme because of alleged excess or abuse of the authority to construct the private roads. (at p571)

16. As I have formed this opinion, I do not propose to examine either the question as to the proper limits of that power or the question whether what the appellants proved would support an excess or abuse of that power. But I may say that in relation to the apportionment of the cost of the work the appellants established enough to indicate that they had reason to complain. However, that is a matter committed to the Council of the Shire and not to the court of petty sessions, and thus not to this Court. (at p572)

17. In my opinion, Adam J. was right in setting aside the order of the magistrate and in returning the matter to him for further consideration. The appeal should be dismissed. (at p572)

McTIERNAN J. I am of the opinion that this appeal must be dismissed. (at p572)

2. Adam J. was clearly right in regarding the decision of Dodd v. City of Keilor (1965) 12 LGRA 341 ; (1966) VR 214 , as binding on him. In view of that decision his Honour was also clearly right in upholding the first ground of the order nisi to review. The order absolute to review from which this appeal has been brought must therefore stand. I would add that I can see no ground on which to overrule Dodd v. City of Keilor (1965) 12 LGRA 341 ; (1966) VR 214 or to hold that the learned judge misapplied the decision. I regret that I cannot make an order affirming the order of the court of petty sessions as in my view the appellants have on materials in the appeal book strong grounds to complain of the impact of the scheme on their land in Finmere Crescent. (at p572)

TAYLOR J. As objectors to the respondent Shire's scheme for the construction of a private street pursuant to Div. 10 of Pt XIX of the Local Government Act 1958 the appellants were successful in obtaining from a court of petty sessions an order that the scheme be quashed. The order was made because the magistrate found that the respondents "have enjoyed the right of access to the public highway for a number of years", that the scheme "if carried out would result in substantial denial of access" to them, that "a denial of it would be a great hardship", and, in effect, that the carrying out of the scheme, involving, as it did, such a denial, would exceed the authority of the respondent shire to construct the street in question. He was, he said, following Marshall v. Blackpool Corporation (1935) AC 16 , and he added that he believed that a responsibility rested upon the shire to devise a scheme of construction which did not involve such a severe denial of access and that, although private-street construction in the locality was particularly difficult, it was not impracticable to give the appellant a right of access. Having come to these conclusions he found that the objection to the scheme had been sustained and made the order quashing it. (at p572)

2. The reference to the objection is, of course, a reference to one only of the objections before the magistrate, namely, "that there had been material defect or error in respect of the scheme or the preparation thereof", particulars in relation to which alleged that (a) "the scheme requires the construction of a retaining wall on the eastern side of our land to a height which is excessive" ; and (b) "the scheme is defective in so far as it does not reserve to us sufficient access to our land". (at p573)

3. Upon review Adam J. set aside the magistrate's order and directed that the objections of the appellants to the scheme be remitted to the court of petty sessions for further consideration and final determination in the light of his judgment. He did so because, upon the authority of Dodd v. City of Keilor (1965) 12 LGRA 341 ; (1966) VR 214 , he was of the opinion that the objection which had been considered by the magistrate was not appropriate to raise and did not raise for his determination the question whether the proposed construction was of such a character as to be in excess of or an abuse of the statutory powers of the Shire and because, even if this issue were properly before him, there was nothing before the magistrate which would have justified a finding in favour of the appellants. These conclusions are, in my view, plainly correct and it is sufficient to say that I agree with the carefully expressed reasons upon which they are founded. I merely add that the case is plainly distinguishable from Marshall v. Blackpool Corporation (1935) AC 16 where the decision of the Corporation, having the effect, as it did, of legally inhibiting the appellants' right of access to the highway where it was desired, proceeded upon consideration of matters which were foreign to the function vested in the Corporation. It was for this reason that the appeal was both initially and ultimately allowed but no such features appear in the present case. (at p573)

MENZIES J. Counsel for the appellants submitted to the Court a careful argument which involved a great deal of research into the decided cases, but, notwithstanding that argument, I consider that the judgment of Adam J. was correct and that the order made should be affirmed for the reasons which his Honour gave. (at p573)

2. The mere fact that the carrying out of a street-making scheme like this would involve a frontager in works and expense to maintain a trafficable entrance from the reformed street to his land is not in itself an objection in law to the scheme, even if it be shown that a different scheme would avoid that particular disability. Any change in the level of a street inevitably creates problems for some frontagers and it is for a council, not for the courts, to take their problems into account. The role of the courts is strictly defined by the Act and that definition does not cover consideration of the merits of a scheme vis-a-vis particular frontagers. I would, however, add that the facts of this case might well be thought to warrant an apportionment of the costs of the works which takes into account the special disability of the appellants under the scheme. (at p574)

OWEN J. This appeal against an order of Adam J. making absolute an order to review the decision of a court of petty sessions raises questions under Div. 10 of Pt XIX of the Local Government Act, a Division which deals with the construction of "private streets". Before dealing with the matters raised by the appeal it is convenient to give an outline of the provisions of the Division as they stood at the relevant time. Section 575 (1) contains a number of definitions. "Construct", in connexion with any private street, includes (inter alia) the formation and levelling of such a street and the execution of

". . . any works rendered necessary in such private street
by or arising out of the raising or lowering of the level of the
street in any case where the level of the street has not been
previously fixed by the council. . .". (at p574)

2. "Private street" is defined but it is unnecessary to set out the definition since it is agreed that the street with which this case is concerned was a "private street" the level of which had not been previously fixed by the council nor had it previously been constructed. By s. 576,

"Where any private street has not previously been
constructed
under this Division . . . the council may subject
to this Division construct such street and recover the cost or
any part of the cost of such construction from the owners
of the premises fronting on such street."

Where a council intends to construct a private street the Division prescribes certain procedures which are to be followed. It is required, inter alia, to prepare a scheme which is to consist of a description of the proposed works together with such specifications, maps, plans etc. as it thinks necessary ; an estimate of the cost of executing the scheme ; a list of the premises fronting on the street to be constructed ; a statement of the portion (whether the whole or part) of the cost which is to be recovered from the owners of such premises and the estimated amount thereof ; the respective estimated amounts which are to be recovered from each such owner as his share of the cost ; and such other particulars as the council considers necessary or expedient (s. 577 (1)). In determining the respective amounts to be recovered from such owner the council is to take into consideration the frontage or area of his premises, the benefit to be derived by those premises from the construction of the street and any other matters which in its opinion are relevant and proper to be considered (s. 577 (5)). When the scheme has been prepared, a copy of it is to be kept at the office of the council and is to be open for inspection by persons interested in or affected by it (s. 578 (1) (a)) and notice in writing is to be served upon every owner intended to be made liable stating (i) that the scheme has been prepared and may be inspected at the council's office ; (ii) the estimated amount which is to be recovered from such owner as his share of the cost ; (iii) that within fourteen days from the service of the notice such owner may, by notice in writing to the council, object to the scheme or any part thereof ; and (iv) the grounds upon which any such objection may be made (s. 578 (1) (b)). By s. 578 (2) it is provided that within fourteen days after the service of such notice any owner may in writing delivered to the council object to the scheme on any of a number of grounds which are set out in a series of paragraphs (a) to (h). These include

"(b) That there has been some material informality defect
or error in respect of the scheme or the preparation
thereof, or that for any reason the scheme is invalid ;
(c) That the amount of liability apportioned to him is
erroneous ;
(e) That it is intended to make owners or any owners liable
under the scheme for any costs or expenses for which they
should not be so liable ;
(f) That the proposed works or any of them are unnecessary
insufficient too costly or unreasonable having regard to
the locality and the probable use of the street to be
constructed ;
(g) That the portion of the cost of the execution of the
scheme which is to be recovered from owners is excessive
or unreasonable ;
(h) That the apportionment of liability among owners is
unfair or that in the circumstances an excessive share
of the cost is to be recovered from any owner."

Not earlier than fourteen days after the service of the last of such notices on owners, the council is to consider the scheme and all objections made to it and may either adopt it with or without modification or alteration or decide not to adopt it (s. 578 (3)). Except in cases where no objection has been made and the council has adopted the scheme without modification or alteration, the council is to cause a copy of it, as adopted, to be kept open for inspection at its office (s. 579 (1) (a)). Where it has been adopted with modification or alteration, a further notice in writing is to be served by the council on every owner intended to be made liable stating that the scheme has been adopted and may be inspected at the council's office; the estimated amount which is to be recovered from such owner as his share of the cost; that within fourteen days after service of the notice such owner may by notice in writing object to the scheme as adopted; and the grounds upon which any such objection may be made. Where the scheme has been adopted without modification or alteration a similar notice is to be served upon every owner who has objected to it (s. 579 (1) (b)). Within fourteen days after the service of such notice any owner upon whom it is required to be served under s. 579 (1) may, by written notice to the council, object to the scheme on any of the grounds set out in s. 578 (2) other than those lettered (f), (g) and (h) or on the ground that there has been some material informality, defect or error in respect of the adoption of the scheme (s. 579 (2)). After the expiration of fourteen days after the service of the last of such notices the council is required to refer objections made to the scheme pursuant to s. 579 to a court of petty sessions and the clerk of that court is to give notice to the council and to the objectors of the date fixed for the hearing of the objections (s. 579 (3)). It will be noticed that grounds (f), (g) and (h) set out in s. 578 (2), namely

"(f) That the proposed works or any of them are unnecessary
insufficient too costly or unreasonable having regard
to the locality and the probable use of the street to be
constructed;
(g) That the portion of the cost of the execution of the scheme
which is to be recovered from owners is excessive or
unreasonable;
(h) That the apportionment of liability among owners is
unfair or that in the circumstances an excessive share
of the cost is to be recovered from any owner."

are not objections which are to be referred to the court of petty sessions for its decision. (at p576)

3. The court, after hearing the council and the objectors, is to consider the objections referred to it and may uphold any such objection in whole or in part or overrule it and approve of the scheme with or without modification or alteration or quash it (s. 579 (4)). The scheme as finally settled is to be the scheme to be observed for the construction of the private street and, notwithstanding any defect, error or apparent invalidity in the scheme or in its preparation, adoption or approval or in any procedure or matter relating thereto, is to be valid and not to be challenged in any court and every owner intended to be made liable under it is to be liable accordingly (s. 580 (2)). When the scheme is finally settled the council may proceed to construct the street in accordance with it (s. 580 (3)). In any proceedings arising out of or in relation to any scheme under the Division, including proceedings upon the hearing of objections, the burden of establishing that the scheme or any part of it is invalid is to be upon the party setting up invalidity (s. 600B). (at p577)

4. The facts are that the appellants are the joint owners of a block of land fronting a private street, known as Finmere Crescent, in Upper Ferntree Gully which is within the area of the respondent Shire. The street, which is about twenty-four feet wide, runs along the side of a hill which slopes down steeply from east to west, the gradient being about one in four, and the appellants' land is on the western or lower side of the street, the land on the opposite side being above the level of the street on its eastern side. There is a dirt track about ten feet wide in the centre of the street which is used to carry traffic, and access to the track from the appellants' land has been had by a driveway from their house to their eastern boundary and thence northward along the unformed western side of the street to a point where the centre track is reached. (at p577)

5. The scheme proposed by the Council provided for the construction of the street to its full width, the level fixed to be that on its eastern side. In order to build up the level of the street on its western side to the level thus fixed, the Council proposed to build a retaining wall along the western side of the street in order to hold the filling material which would have to be used to build up the level. At its highest point along the boundary of the appellants' land this wall would reach a height of about seven feet and would seriously impede their access to the street unless and until they built on their land a graded driveway which would enable them to reach the proposed new level of the road. In accordance with the provisions of Div. 10, the appellants gave written notice of objection to the scheme and ultimately, after the various procedures laid down by the Act had been followed, their objections came before a court of petty sessions. Their notice of objection stated three of the grounds set out in s. 578 (2). The first was that "the amount of liability apportioned to us is erroneous", the second that "it is intended to make us liable as owners under the scheme for costs and expenses for which we should not be so liable" and the third that "there has been material defect or error in respect of the scheme or the preparation thereof". It will be seen that this third objection set out portion only of the grounds stated in s. 578 (2) (b) and did not allege that for any reason the scheme was invalid. The notice gave as particulars of the objections that

"1. The scheme has been prepared without proper regard
to the area of our land.
2. The scheme has been prepared to allow for an excessive
width and depth of paving in Willow Road (a nearby
street which was also included in the scheme).
3. The scheme requires the construction of a retaining wall
on the eastern side of our land to a height which is
excessive.
4. The scheme is defective insofar as it does not reserve to
us sufficient access to our land." (at p578)

6. The matter came on for hearing in the court of petty sessions when the second set of particulars was abandoned. In the course of the proceedings evidence was led for the appellants to the effect that it would be practicable to construct a two-level street, the eastern half of which would be constructed at the existing level of the eastern side and the western half at the existing level of its western side, the upper level being supported by a retaining wall along the centre of the street. It was not disputed that to construct a twolevel street would be more costly than if the Council's proposal was adopted, and this and other objections to the proposal put forward on behalf of the appellants were made in the evidence called by the council and submissions made on its behalf. (at p578)

7. At the close of the evidence the learned magistrate decided to hear argument on the matters sought to be raised by the appellants under the third ground of objection, namely that there had been a material defect or error in respect of the scheme or the preparation thereof. Counsel for the appellants submitted that the Council's scheme, if carried out, would seriously and unreasonably interfere with his clients' access to the street. For this reason, he submitted, the scheme went beyong the powers conferred by Div. 10. On behalf of the Council it was contended that the scheme as proposed by the Council might lawfully be carried into effect and that, in any event, it was not open to the appellants under their third ground of objection and the particulars which they had given to question the validity of the scheme except on the ground that there had been some failure by the Council to follow what I may call the machinery provisions for which the Division provides. (at p578)

8. At the close of argument the learned magistrate said :

"I have considered the submissions put to me and the
authorities quoted by both counsel for the Shire and for the
objectors. Having considered these, I have come to these
conclusions, which are as follows : -
Firstly, the scheme if carried out, would result in
substantial
denial of access to Mr. and Mrs. Burchall.
Secondly, I find from the evidence that the Burchalls have
enjoyed the right of access to the public highway for a number
of years, and a denial of it would be a great hardship to them.
Thirdly, I find that the Shire has power to construct this
private street, but that it exceeded its authority by this denial
of access. I am following Marshall v. Blackpool Corporation
(1935) AC 16
.
Fourthly, I believe that the responsibility rests upon the
Shire to devise a scheme of construction which does not involve
such a severe denial of access to the Burchalls, and accordingly
I find that this objection is properly taken under s. 578 (2) (b).
Fifthly, I find that private street construction in this locality
is particularly difficult but it is not impracticable to give
Mr. Burchall a right of access; and I am not satisfied that
there is no way out other than this current scheme. I find
that the onus under s. 600B has been discharged.
Sixthly, having come to these conclusions, I find the
objection
to the scheme has been sustained, and under the
circumstances
the proper order is that the scheme be quashed, and
I propose to make that order."

His Worship accordingly made an order quashing the scheme. An order nisi to review the order so made was obtained by the appellants and the application to make the order absolute was heard by Adam J. His Honour was of opinion that the words "that there has been some material informality defect or error in respect of the scheme or the preparation thereof" in s. 578 (2) (b), which were set out in the appellants' third ground of objection, related only to a failure by the Council to comply with one or more of the steps which the Division required to be taken by a council in preparing and producing a scheme for the construction of a private street. In so holding the learned judge followed and applied what had been said by the Full Supreme Court of Victoria in Dodd v. City of Keilor (1965) 12 LGRA, at p 346 ; (1966) VR, at p 218 . It was conceded by counsel for the appellants that there was no evidence of any such failure nor did the particulars given in support of the third objection allege that there had been any non-compliance with any of the necessary steps laid down in the Division. Accordingly his Honour made the order nisi absolute and remitted the case to the court of petty sessions so that it might consider the other two grounds of objection with which the learned magistrate had found it unnecessary to deal. In the course of his judgment Adam J. referred to that part of s. 578 (2) (b) which provides that an objection may be made on the ground "that for any reason the scheme is invalid", a ground which had not been mentioned in the appellants' notice of objection, and expressed the opinion that there was much to be said for the view that under that ground, had it been taken, it would have been open to the appellants to contend that it would have been oppressive or unreasonable to carry out the scheme proposed by the Council and for that reason beyond its powers. I agree, with respect, with the tentative view thus expressed by his Honour and I agree also with him and with the Full Court in Dodd v. City of Keilor (1965) 12 LGRA, at p 346 ; (1966) VR, at p 218 that the first limb of s. 578 (2) (b) is confined to cases in which a council has failed to comply with some one or more of what I have called the machinery provisions of Div. 10. While a notice of objection to a proposed scheme should not be construed as though it were a pleading in an action, it must, in a case such as this in which it is sought to attack a proposed scheme as being one which on general principles is beyond power, indicate with reasonable clarity that such an objection is being made so that the council may give full consideration to the questions involved. To enable an objector to make such an attack it is not enough to object on the ground that there has been some material informality, defect or error in respect of the scheme or in its preparation. In these circumstances I am of opinion, as was his Honour, that it was not open to the appellants to contend or the learned magistrate to find, that the scheme was beyond power because, if carried out, the appellants' access to the street would be seriously obstructed and the Council would be acting "arbitrarily, carelessly or oppressively", to use the words of Abbott C.J. in Boulton v. Crowther [1824] EngR 21; (1824) 2 B & C 703, at p 707 [1824] EngR 21; (107 ER 544, at p 546) , which were cited with approval in East Fremantle Corporation v. Annois (1902) AC 213 , or "arbitrarily, wantonly or oppressively", a phrase used by Holroyd J. in Boulton's Case (1824) 2 B & C, at p 709 (107 ER, at p 547) . (at p580)

9. I would dismiss the appeal. (at p580)

ORDER

Appeal dismissed with costs.